• In the case of Richardson v LRC Products Ltd [2000] P.I.Q.R. P164, it was held that a condom splitting does not, by itself, prove that the product had been defective when it left its place of manufacture. Also, an unwanted pregnancy arising from this occurrence would not support a claim if the claimant failed to take advantage of the morning after pill.

Facts of the Case

  • By 1993, C and her husband had 2 children. At this point, they decided to keep their family at that size and began using contraception.
  • On 20th May 1995, after C and her husband had engaged in sexual intercourse, C found that the condom had torn during the act. C discovered that she had become pregnant due to this event.
  • C brought action against the manufacturer D under the Consumer Protection Act 1987 under two heads of action.
  • First, C alleged that the fracture was caused by the latex being weakened from ozone damage. This would put the damage before the condom left the factory.
  • Second, C alleged that the fact that there was a fracture itself meant that the product was defective, even if it cannot be suggested precisely what that defect was. 
  • D agreed that there was ozone damage but contended that it took place during the time that the used condom had been left in a cupboard pending C’s complaint.

Issues

  • Did the existence of the fracture by itself show that the condom was defective at the time it left the factory?

Held by the Queen’s Bench Division

  • Finding for D, that on the basis of all available evidence, the evidence of D’s expert was to be preferred. This suggested that the ozone damage had occurred after the latex had fractured. It was not possible to pinpoint why it had fractured. As such, C could not make out her claim and so must fail.

Mr Justice Kennedy

  • The factory would have been like the environment in C’s house because it was indoors, and one in which the ozone concentration would be at most half that of the outside. Ozone is reactive, particularly to wood and other substances of an organic nature with which a house and factory will both be full.
  • There was a whole host of equipment which, if it malfunctioned, could create sparks. To counter this risk, D boxed in such equipment and the factory layout was designed to keep sources of sparking and electrical discharges as far away from their products as was reasonably possible. To monitor the ozone levels in the factory would be impractical and would not yield any reliable information.
  • The overall precautions which D took, and the design of the equipment seems to be all that one could reasonably expect. C is not able to identify any part of the process which they can raise any reasoned criticism of.
  • Neither expert, however, can, and this despite a meticulously thorough search by each of them, can identify a point as being the origin of the fracture, though this is not necessarily unusual with fractures in rubber.
  • Even if the cracks, and if they were present a defect, were present when the condom was used, it is by no means clear that any crack was itself the cause of the fracture.
  • “Dr Rosenberg’s inquiries showed that there was a, at first, surprising coincidence at the number of breaks experienced by particular couples. No doubt he and his team would have asked the various indelicate questions which would have to be answered before he would be able to say as he did, ‘We could find nothing to explain these happenings.’ He attributes the fact that particular couples may have unfortunate experience with a batch of condoms, largely to chance certainly not to any necessarily identifiable cause, and so if fractures can happen by chance to those couples, they must in the nature of things happen to any user” [172].

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